Friday, October 30, 2015

Professionalism & Ethics Committee: What Is Your Professionalism Quotient?

By Caroline Johnson Levine

     A lack of professionalism can have wide-ranging consequences for an attorney, and disciplinary sanctions can be severe. Professionalism may be an easy concept in theory; however, it can become challenging in practice. Overwhelming caseloads, conflicts with distressed clients, and challenging communications from opposing counsel can sometimes create unexpected pitfalls for an attorney. Importantly, attorneys must consider that professionalism is intractably tied to the ethical Rules Regulating The Florida Bar.

     Pursuant to its constitutional authority, the Florida Supreme Court routinely issues disciplinary decisions regarding unprofessional behaviors exhibited by some attorneys. See Art. V, § 15, Fla. Const. These decisions, which demonstrate the court’s authority to regulate the Bar, can be viewed on the Florida Supreme Court website. A recently issued decision in The Florida Bar v. Dupee, 160 So. 3d 838 (Fla. 2015), elucidates how quickly a 20-year legal career, with the attainment of board certification in real estate law, can be dismantled over malfeasance in one single case.

     Zana Dupee represented a wife in a dissolution of marriage proceeding. The wife owned a credit union account in her name only, which contained a large amount of funds. Dupee advised the wife that this account should be closed and a cashier’s check should be issued in the name of a non-existent charitable trust. “Because the named payee was fictitious and the check was never negotiated, the money represented by the cashier’s check remained the property of [Dupee’s] client.” Id. at 841; see also § 673.4041(2), Fla. Stat. (2014). During the course of litigation, Dupee submitted the wife’s false financial affidavit and did not timely or truthfully respond to discovery requests. Finally, Dupee personally secreted away the husband’s treasured coin collection, which the husband obtained in the final judgment. Dupee “did not disclose that she had the coins until she was ordered to produce them in a postjudgment contempt proceeding.” Id. at 843. Dupee was found guilty of violating several rules and was disbarred by the Florida Supreme Court for one year. 

     “Professionalism” is a word that is frequently extolled by attorneys. However, it can sometimes appear to be an elusive ideal in practice as we dwell in a world that appears to be losing its hold on civility. Oftentimes in the legal field, one’s intelligence quotient (IQ) is celebrated. However, an attorney’s “professionalism quotient” (PQ) may be more important to cultivate in a profession that protects clients and the rule of law. 

     Dupee clearly demonstrates that it is critical for attorneys to continually develop and guard their professionalism skill set. One of the best methods for attorneys to grow and improve their PQ is to join and actively participate in the Hillsborough County Bar Association! Participating in the HCBA’s various sections and committees can lead to service opportunities in unexpected ways and create exposure to countless examples of excellent leadership.

Executive Director's Message: Jeff Vinik’s Keynote Remarks Regarding Downtown Tampa Plans Highlight Bench Bar Conference

By John F. Kynes

Sharing his grand vision to make Tampa’s Channelside area the “next great urban waterfront district,” Jeff Vinik’s keynote address to HCBA members was one of the highlights of the 19th Annual Bench Bar Conference and Judicial Reception held on October 27 at the Tampa Hilton Downtown.

When Vinik purchased the Tampa Bay Lightning in 2010, he promised to transform the franchise into a “world-class” organization, on and off the ice, and to make a significant positive impact in the Tampa Bay community. Now, just five years later, I think it’s unanimous: Mission accomplished.

On the ice last season, the Lightning battled to get into the NHL playoffs and eventually won the Eastern Conference Championship, beating the New York Rangers in seven hard-fought games. Then they played the Chicago Blackhawks in the Stanley Cup Finals, losing the series in six games.

In the community, the Lightning Foundation has donated more than $6 million to more than 200 local nonprofits through its Community Heroes program in which a representative from a charity is presented a $50,000 check at each home game.

In his remarks to the 650 luncheon attendees, Vinik said the first phase of the downtown development is estimated to be $1 billion, with another $1 billion targeted for phase two of the project. He said phase one will be under way in 2016 and will include: the University of South Florida Morsani College of Medicine; 1,000 new residential units; new commercial office space; upscale retail and restaurants; significant roadway improvements; and a new four-star hotel.

In addition, Vinik said Strategic Property Partners, the real estate company he controls with Cascade Investment, has partnered with New York-based Delos on a wellness initiative that will make the district the first WELL-certified neighborhood in the world. This means all the buildings will have to meet certain environmental and health criteria that will improve the overall quality of life of the people who live and work in the district. The criteria include walkability, green space, air and water quality, and fitness.

“All of us can change this area, the way we think about it, the way it is branded. I know this is doable,” Vinik told the crowd.

In the meantime, Vinik said he has received a tremendous response from corporate leaders in his travels around the country to recruit companies to locate in Tampa and the downtown district. “We’re very confident that over time we’re going to bring thousands of high-paying jobs to the Tampa Bay area,” he said.

Later, taking a moment to reflect on his new work as a developer, Vinik joked: “In my previous life, I was a money manager in business and always kept my head down and was focused on performance. I had no idea that next thing you know I would become a salesperson.”

Concluding his remarks, Vinik sounded an optimistic tone: “We are on the map, we are resonating, and I couldn’t be more bullish for the outlook for this area.”


The theme for this year’s Bench Bar Conference was “Breaking Good: Prioritizing Professionalism in Advocacy.”

Thirteenth Judicial Circuit Judges Samantha Ward and Lisa Campbell were the conference co-chairs. Both judges worked for months with the other dedicated Bench Bar Committee members; the HCBA’s CLE director, Monique Lawson; and other HCBA staff members planning the conference.

“Our committee is challenged annually to develop programs and sessions that are of interest to a large cross-section of attorneys, but remain practical and relevant to their practice areas,” Judge Ward said. “We tried to create an environment where members of the Bar feel free to express concerns and criticisms to the Bench, and not vice-versa with the usual ‘judicial pet peeves.’”

There were a record number of attendees at the various CLE breakout and plenary sessions held throughout the day.

“The feedback from attorneys has been phenomenal,” Ward said.

One highlight, Ward said, was a jury panel session where recent jurors came and answered questions from attorneys about their jury experience. “It was my favorite part of the conference this year, and we are working to explore and expand this concept for future sessions,” Ward said.

Later in the day, more than 400 HCBA members enjoyed the camaraderie provided at the annual Judicial Reception at the Hilton.

Special thanks and gratitude go out to the many generous sponsors that helped make this year’s conference possible, and especially the Diamond Sponsor, Steve Yerrid and The Yerrid Law Firm.

Planning is already under way for the 20th annual conference next fall.

See you around the Chet.

Wednesday, October 28, 2015

YLD President's Message: Pro Bono for the Soul

By Dara Cooley

I have a confession. While working late into the night, plowing through page after page of tedious documents, I have muttered these words: “I have no life.” And assuming, dear reader, that you are a fellow young lawyer, I am confident you have muttered those words, too.

It doesn’t have to be this way.
We, as young lawyers, are blessed: Though most of us do not appreciate it, we have careers that allow us to not only make a living but, more importantly, an opportunity— in fact, a responsibility — to give. Remember your Oath as an Attorney: “I will never reject, from any consideration personal to myself, the cause of the defenseless or oppressed, or delay anyone's cause for lucre or malice.”

Pro bono work — giving — is good for your soul ... and for your career. Pro bono work provides young lawyers valuable experiences and opportunities to hone their skills for the future. Generally, young litigators in traditional law firms won’t realize these important benefits through paid work. Yet, reputable law firms and partners often encourage pro bono work by giving associates credit toward year-end goals. These partners understand that profit is not the only bottom line in a law firm. Instead, they promote multiple bottom lines ― health, wellness, and pro bono service.

Pro bono work provides experience in a wider range of subject matters than standard commercial litigation, including face-to-face contact with clients and opportunities to craft and refine interviewing, counseling, and negotiating skills.

Community service makes betters lawyers. It’s that simple.

The American Bar Association deemed the last week of October as “National Pro Bono Celebration.” The Young Lawyers Division has done our part to celebrate and promote community service and pro bono work. At our quarterly luncheon on October 22, we hosted more than 10 pro bono groups and provided a platform for each to share information about their services to the community. Among the participants were Crossroads for Florida Kids, Wills for Heroes, Are You Safe, Bay Area Legal Services, Guardian ad Litem, H.E.L.P (Homeless Experience Legal Project), and the HCBA Military Veterans Advocacy Clinic. Young lawyers left armed with information to make a difference.

The YLD supports pro bono all year long. As Katelyn Desrosiers, the Pro Bono Committee chair, notes: “Lawyers are able to provide a benefit to the community that may not otherwise be available. It enables lawyers to meet other likeminded members of the profession. Most importantly, it allows our profession the opportunity to give back to those less fortunate and really change outside perceptions of judicial system. I always leave a pro bono session feeling genuinely happy and renewed.”

Please contact Pro Bono Committee Chairs Katelyn Desrosiers,, or Ella Shenhav,, for further information about pro bono opportunities.

Labor and Employment Law: 2015 SCOTUS Academy Nominees (Round 1)

By Jamie Marcario

     So you thought you had seen it all when SCOTUS issued several blockbuster employment rulings in the 2014 term? Think again. In the 2015 term, SCOTUS will consider more “must watch” cases with potentially significant employment implications.

     Of these, the nominee for “most classy” (pun intended)  is Tyson Foods Inc. v. Bouaphakeo, No. 14-1146, which may prove to be an epic decision on the standards for class certification. In Tyson, the court will consider the requirements for class certification under Rule 26 and collective actions under the Fair Labor Standards Act. It will decide: (1) whether differences in class members may be ignored, and a class certified, when plaintiffs use statistical techniques that presume class members to be identical; and (2) whether a class that contains hundreds of members who suffered no injury and have no damages claims may be certified.

     Those representing businesses that face class or collective actions should keep a close watch on this one. In an environment in which lower courts often permit class certification, regardless of class member differences, SCOTUS may use this case to reinstate the once-demanding standards for obtaining class certification.

     The nominee for “most consequential” is Campbell-Ewald Co. v. Gomez, No. 14-857, which will consider “[w]hether a case becomes moot, and thus beyond the judicial power of Article III, when the plaintiff receives an offer of complete relief on her claim” under Rule 68 and, if so, whether a case remains moot when the plaintiff “has asserted a class claim under ... Rule 23, but receives an offer of complete relief before the class is certified.” See
Gomez v. Campbell-Ewald Co., 768 F.3d 871 (9th Cir. 2014)

     Although Campbell-Edward Co. arises under the Telephone Consumer Protection Act, a decision could have serious ramifications for employment class actions. A ruling may settle a circuit split, compare Stein v. Buccaneers Ltd. P'ship, 772 F.3d 698 (11th Cir. 2014) (rejecting mootness) and Lucero v. Bureau of Collection Recovery, Inc., 639 F.3d 1239 (10th Cir. 2011) with Warren v. Sessoms & Rogers, P.A., 676 F.3d 365 (4th Cir. 2012) (holding offer moots claim) and Weiss v. Regal Collections, 385 F.3d 337 (3d Cir. 2004), and a Supreme Court split, Genesis Healthcare Corp. v. Symczyk, 133 S. Ct. 1523 (2013), over whether offers of judgment under Rule 68 that are equal to or greater than a plaintiff’s statutory damages moot her individual claim or whether her claim, along with the putative class action, survive the offer’s expiration. Given the prominent role mootness plays in the growing number of employment class actions, if the decision turns on this issue, lawyers must get up to speed quickly about the implications for employment clients.

     If you would like to nominate other “must watch” decisions or emerging employment issues that should make the Labor & Employment Section’s list this year, please drop us a line. (Or better yet, offer to write an article.)

Monday, October 26, 2015

Trial & Litigation: Scholarship-Winning Essay

     Each year, the Trial & Litigation Section awards a scholarship to the law student who submits an article that best addresses an important issue facing our adversary system. This year, we asked students to answer the following: “I believe that jury trials are important to American Jurisprudence because ...” We’re pleased to present a very thoughtful article by Sienna Osta, a third-year law student at Cooley Law School and our 2014-2015 scholarship winner.


By Sienna Osta

     Jury trials are important to American jurisprudence because they are so rare. Readers of the Lawyer magazine will not be surprised by the following trends:

  • During the 1970s, about 15 percent of criminal and 8 percent of civil cases went to trial. In 2010, trials accounted for only 2 percent of criminal and 1 percent of civil dispositions.
  • From 1991 to 2010, the number of civil jury trials declined by almost 60 percent.
  • Among U.S. district courts in 2010, trials accounted for less than 3 percent of all tort, contract, and intellectual property dispositions.
      The rarity of trials reveals two important things about American jurisprudence. First, that trials, and jury trials in particular, are inefficient, unpredictable, and expensive. Second, the factors that make jury trials rare also explain why they still exist — jury trials are the best way to solve our most intractable disputes.

     In 1787 — a time when physicians treated illnesses by bleeding their patients, physicists argued about aether, and information traveled only as fast as horses could carry it — a handful of American lawyers helped draft the fundamental rules for the most powerful government in history.

     Only revolutionary lawyers could have founded a government made of equal parts radical political theory and traditional common law. The protection of jury trials by the Bill of Rights is among the most illustrative examples of our Constitution’s synthesis of egalitarianism and establishmentarianism.

     Yet the ideology of trial avoidance has become institutionalized throughout the legal community. Legislators, judges, attorneys, and even clients seem to share the same mentality — trials are just too risky. But the laudable desire for increased economy, predictability, and uniformity can be taken a step too far. The risks inherent in a fair trial are a feature, not a bug.

     As the most democratic element of an increasingly stratified and bureaucratic system, trials lend credibility to adjudicative decisions in a way that mechanical determinations cannot. Just as a fair election is unpredictable, a fair trial must be unpredictable. All the frustratingly incalculable variables — the biases, the emotions, the sensitivity to initial conditions — meld together into the emergent property called legitimacy.

     Jury trials are important because they are sometimes at odds with the will of those in power. And yet, jury trials serve to vindicate just authority. A government that can enforce any edict it desires, without limitation, is a tyranny. A government that must convince a statistical sample of the community that its laws are just, both in theory and in application, is constitutional.

     In civil matters, a public jury trial can actually be a powerful panacea for future litigation. A corporation that can foist operational costs and liabilities on society is a parasite. A corporation that successfully defends against allegations of negligence, corruption, and greed is a citizen.
     Jury trials are important to American jurisprudence because they are the difference between democracy and totalitarianism. They are important because we have yet to devise a fairer way to resolve our disputes. They are important because they are not yet dead.

Thursday, October 22, 2015

Marital and Family Law: Until Death Do Us Part

By Kristi McCart

     A general rule is that when a person makes a will, he or she is able to direct who receives property after his or her death. However, in Florida, it is difficult to disinherit a spouse regardless of whether the parties are separated or dissolving their marriage at the time of death. If the dissolution has not been finalized with a judgment and a spouse dies, then the parties are treated as if they are still married. The surviving spouse is entitled to a percentage of the deceased spouse’s estate in what is known as the elective share.

     A person cannot unilaterally disinherit a spouse. The elective share provides a measure of financial protection for a surviving spouse who has been disinherited. Under current Florida law, a surviving spouse may elect to receive an amount of money that is equal to 30 percent of the decedent spouse’s estate, which includes nonprobate assets (including life insurance, pensions and retirements, joint assets, and assets in revocable trusts). § 732.2065, Fla.Stat. The elective share does not apply to irrevocable transfers that occurred prior to the date of marriage or before October 1, 1999.

     To circumvent the elective share, the parties should execute a prenuptial or antenuptial agreement that specifically references a waiver of homestead and elective share rights. In addition, the antenuptial agreement requires a full and complete disclosure of the parties’ assets and financial statements. In the probate context for the waiver of homestead and elective share, no financial disclosure is required for agreements executed prior to the marriage. § 732.702(2), Fla. Stat. Further, no consideration other than the execution of the agreement or waiver is necessary for its validity, whether executed before or after the marriage. Id.   

     If a married couple in the midst of a dissolution of marriage cannot agree to a marital settlement agreement, the couple will likely not agree to signing a reciprocal agreement waiving entitlement to each other’s estates. If the parties cannot reach an agreement and a spouse dies, the family law court loses its jurisdiction over the matter. At that time, the now estranged but still legal spouse may petition the probate court to be appointed as personal representative and make his or her election to take the elective share. Notwithstanding the elective share, the surviving spouse may also have an entitlement to the homestead protection and a family allowance of up to $18,000. See §§ 732.401, .403, Fla. Stat.

     In total, a decedent may not successfully and completely disinherit a spouse without a valid agreement or waiver. Florida’s probate laws regarding elective shares are complex, and an experienced probate attorney should be used to determine the rights of both the estate and surviving spouse.

Wednesday, October 21, 2015

Securities Law Section: Plausible Allegation of Amount in Controversy is Sufficient for Removal

By Daniel P. Dietrich

     In any state-court-filed matter, one of the first issues that defense counsel analyzes is whether the case can be removed to federal court. When removal is based on diversity jurisdiction, the amount in controversy becomes an issue and the defendant, as the party seeking removal, bears the burden of establishing jurisdiction. In the not-so-uncommon scenario where the plaintiff has not pled a specific amount of damages, what is the defendant to do? Does the defendant have to merely allege jurisdictional facts to support removal, or does the defendant have to submit evidence to support the amount in controversy?

     The United States Supreme Court addressed the issue in Dart Cherokee Basin Operating Co., LLC v. Owens, 135 S. Ct. 547 (2014). The underlying matter involved the Class Action Fairness Act of 2005 (CAFA), which outlines the federal courts’ diversity jurisdiction over class actions. To establish federal jurisdiction under the CAFA, three elements are required: (1) minimal diversity, meaning at least one plaintiff and one defendant must be citizens of different states, (2) the proposed class must have at least 100 members, and (3) the amount in controversy must exceed $5 million. 28 U.S.C. § 1332(d)(2), (6).

     In Dart Cherokee, the defendant removed the action to federal court and alleged in the notice that the amount in controversy was over $8 million, well above the $5 million jurisdictional amount. The plaintiff moved to remand, which the district court granted since the notice of removal failed to provide any evidentiary support for the $8 million figure. Specifically, the district court explained that while a plaintiff cannot avoid removal merely by declining to allege the jurisdictional amount, the defendant must support the amount in controversy with factual evidence rather than mere assumption or speculation. For example, the defendant can use discovery methods or affidavits to support the jurisdictional amount. In Dart Cherokee, the defendant did not submit any evidence to support its notice of removal, and the district court explained that the defendants were obligated to allege all necessary jurisdictional facts in the notice of removal, not in response to a motion to remand.      

     The issue made its way to the United States Supreme Court, where the court held that, under 28 U.S.C. § 1446(a), a defendant's notice of removal need include only a plausible allegation that the amount in controversy exceeds the jurisdictional threshold. The notice need not contain evidentiary submissions. The court further explained that a plaintiff's amount-in-controversy allegation invoking federal-court jurisdiction is accepted if made in good faith, and the amount-in-controversy allegation of a defendant seeking federal-court adjudication should be accepted when not contested by the plaintiff or questioned by the court. If the plaintiff does contest the allegation, the parties will be entitled to submit proof, and the court will decide. In the notice though, plausible allegations are sufficient.

Tuesday, October 20, 2015

Millitary and Veterans Affairs Committee: Working to Enhance and Build Upon MVAC’s Mission

By Matthew F. Hall  and Colleen O’Brien

     As we seek to build on the outstanding work of the Military & Veterans Affairs Committee (MVAC), we would like to thank Bob Nader, Lt. Col. Christopher Brown, and Ben Hill IV for their guidance and leadership in transforming the former Military Liaison Committee into MVAC. We pledge to work hard to continue to connect our Bar association with our active-duty, reserve, guard, and veteran community in Tampa Bay.

     By way of introduction, MVAC leadership is composed of our military liaison, Lt. Col. Brown, the staff judge advocate at MacDill Air Force Base. Our emeritus chair is Bob Nader. Bob is the son of a WWII veteran. He continues to provide the committee with heart, dedication, energy, and great ideas. Co-Chair Colleen O’Brien has several family members who served in the military. She is familiar with and has a deep respect for what it means to serve. Finally, Co-Chair Matthew Hall enlisted in the U.S. Army Infantry at 17 and deployed to Iraq in 2003. The diverse backgrounds of the MVAC leaders are representative of the diverse members of the MVAC who came together to make this committee strong, despite its young age.

     Last year, a significant MVAC project was creating the Veterans Legal Registry to connect veterans in need of legal assistance with lawyers wanting to assist them. We currently have 17 areas of law where local attorneys have committed to support those who have served our nation.  The list is available at If you would like to be added to the registry, please contact us. Additionally, MVAC and other HCBA attorneys volunteered at community “Stand Downs” and similar events to respond to veterans’ legal questions and provide registry referrals. 

    Another way the MVAC assists veterans is through the Hillsborough County Veterans Treatment Court (VTC). The VTC recently expanded from misdemeanors and ordinance violations to also include felonies. That change resulted in the court going from about a dozen defendants to more than 40 in less than six months. A unique facet is the VTC’s mentoring system ably led by MVAC member and retired U.S. Army Col. D.J. Reyes. The defendant is assigned a battle buddy with military experience to support the veteran as he or she progresses through the VTC program. Several MVAC members serve as mentors in this rewarding program.

     The MVAC also has an education component to its tripartite mission statement. Last year, we conducted three well-received CLEs, and we intend to continue providing CLE credits, including significant ethics credits

     This year, we look forward to working with the HCBA’s other committees and taking advantage of the MVAC’s diverse membership. We hope to capitalize on Colleen’s involvement in the YLD to connect young lawyers with more experienced lawyers to benefit both committees and to extend the MVAC’s reach into specific practice areas.

     We invite you to attend an MVAC meeting or volunteer for an event. The MVAC is open to all attorneys, regardless of military experience. Our mission is to serve those who have served this great nation. We look forward to another great year of assisting veterans in our community. We welcome your ideas and hope you will join us on this important mission.

Sunday, October 18, 2015

Workers' Compensation Section: Big Things to Come This Year

By Anthony V. Cortese

     This year, we will have speakers presenting seminars addressing dramatic changes and issues in state workers’ compensation law, on immunity issues, on methods of medical treatment, and on unprecedented changes to the rules governing the Longshore and Harbor Workers’ Compensation Act and Defense Base Act. Watch your email, this magazine, and the HCBA Weekly Update for dates and times. In the meantime, discovery limits have been hot topics.

     The most recent relevant discovery decision came from the Second District in Mueller v. Wal-Mart Stores, 164 So. 3d (Fla. 2d DCA 2015). The claimant, who was hit by a truck, filed a negligence claim in 2012 and objected to a discovery order compelling release of his entire military file after an honorable discharge in 1993. The claimant argued this was an invasion of his right to privacy and requested at a minimum that the court conduct an in-camera inspection of the file before requiring disclosure. The Second District agreed and directed that the lower court conduct an in-camera inspection and segregate any private documents that were not relevant to Mueller’s negligence action from the relevant documents.

     An earlier decision on social media was announced in Root v. Balfour Beatty Construction, 132 So. 3d 867 (Fla. 2d DCA 2014). In that case, a 3-year-old child was struck by a vehicle. During discovery, the trial court ordered the child's mother to produce Facebook material relating to her relationship with all of her children, not just the injured 3-year-old, and with other family members, boyfriends, husbands, and/or significant others, both before and after the accident. There was no temporal limitation on the production. The Second District overturned the trial court, noting that this was the kind of carte blanche discovery that the Florida Supreme Court warned against in Allstate Insurance v. Langston, 655 So. 2d 91, 95 (Fla. 1995). “[W]e do not believe that a litigant is entitled to carte blanche irrelevant discovery.”
     Appellate cases before the Florida Supreme Court will dramatically affect the practice both in terms of indemnity benefits, Westphal v. City of St. Petersburg, 122 So. 3d 440 (Fla. 1st DCA 2013), cert. granted, and in terms of attorney fee awards, Castellanos v. Next Door, 124 So. 3d 392, (Fla. 1st DCA 2014), cert. granted. There are also medical procedures that are becoming mainstream, such as minimally invasive spine surgery and stem-cell injection procedures for the knee and shoulder. The importance of tort remedies available to injured workers was illustrated by a favorable jury verdict for a plaintiff earlier this year in Robert Matthews v. Mosaic Fertilizer, Case No. 10-CA-009268 Circuit Court, Hillsborough County, FL (verdict docketed on March 30, 2015.) The Longshore and Defense Base Act Rules of Procedure were dramatically revised this year and will have a major impact on that practice. We will offer seminars and speakers on each of these topics this coming year. We hope to see you then.

Thursday, October 15, 2015

Intellectual Property: Patent Law Basics Series - Top Questions Answered, Part 1

By Kristin M. Crall

Even sophisticated companies and inventors have questions about basic patent issues, such as what rights a patent confers and how the patent system works. This Q&A series addresses some of the more frequently asked questions.

Q: What rights does a patent provide?

A: A patent concludes with a series of numbered paragraphs, called “claims.”  The claims define the scope of protection the patent owner is entitled to, defining the boundaries of the invention. Patents confer exclusionary rights — a patent gives its owner the right to exclude others from making, using, selling, offering for sale, or importing the claimed invention anywhere in the United States for the life of the patent. To establish infringement of a patent, every element of a claim must be found in the accused device, product, or process, either literally or by a substantial equivalent.

Instead of preventing others from practicing the patented invention in the United States, a patent owner may wish to license the patent to others by charging a royalty or licensing fee for allowing others to practice the invention. Patents may also be used as a bargaining tool, either when faced with a patent suit by a competitor or when entering negotiations.

Q: Is a prior art search required?

A: Although searching is recommended before preparing a patent application, it is not required. A prior art search can be useful to determine whether it is worth the time and expense of moving forward. If a patent application is prepared, review of the search results can help with crafting claims that are as broad as possible, while distinguishing over the art. There are professional searchers available, but it is also possible to search on your own, using basic Internet word searches and searching the patent office website

Q: How does the patent examination process work?

A: Once a patent application is filed, it is assigned to a patent examiner responsible for patents in a particular technology area. It is common for a patent application to remain pending for a year or more, awaiting its turn to be examined. The examiner conducts a search of the patent office’s databases, attempting to identify whether the same or a similar invention already exists.  Communications between the patent examiner and applicant about what the examiner has found (called “prosecution”) ensue, with the applicant having the option to present arguments about why the examiner’s interpretation is incorrect and/or amending the claims to distinguish over the art. Once (and if) agreement is reached, the applicant pays the issue fee, and the patent office will issue a United States patent. 

Q: Is there anything I can do to speed this up?

A: One option is to file a Track One request upon filing of the application. There are fees involved (which are currently about $4,000 in addition to the regular filing fees), and there are certain requirements and limitations to be met, but if granted, the Track One request can drastically expedite the examination process.  The current patent office goal is to issue a final disposition within 12 months of prioritized examination being granted.

Wednesday, October 14, 2015

Senior Counsel: A Brief History of Legal Ethics

By Thomas Newcomb Hyde 

     Senior lawyers in the Hillsborough County Bar Association have the opportunity to provide an example for legal ethics and professionalism for other lawyers in the Thirteenth Judicial Circuit. For inspiration, experienced lawyers often look to the American Bar Association (ABA), which has provided leadership in legal ethics and professional responsibility for over 100 years, through the adoption of professional standards as models of appropriate conduct. Model Rules of Professional Conduct, at ix (Am. Bar Ass'n 2012).

     In 1908, the ABA adopted the Canons of Professional Ethics based principally on the Code of Ethics that had been previously adopted by the Alabama Bar Association. Id. The Preamble to the Canons sets the tone for the conduct of lawyers in the United States. “The future of the Republic ... depends upon our maintenance of Justice pure and unsullied.” “It cannot be so maintained unless the conduct and the motives of the members of our profession are such as to merit the approval of all just men.” Canons of Professional Ethics, at 1 (Am. Bar Ass'n 1908). The 32 canons, among other things, touched on: The Duty of Lawyers to the Courts (Canon 1); Adverse Influences and Conflicting Interests (Canon 6); Restraining Parties from Improprieties (Canon 16); Candor and Fairness (Canon 22); and Upholding the Honor of the Profession (Canon 29). These were eventually expanded to 47 canons, including Confidences of a Client (Canon 37). Id.

     However, the Canons of Professional Ethics were not an effective teaching instrument and failed to give guidance to young lawyers beyond the language of the canons themselves. Model Code of Professional Responsibility at x (Am. Bar Ass'n 1985). So in 1964, then ABA President and later Supreme Court Justice Lewis F. Powell Jr. created a special committee to evaluate ethical standards. That committee produced the Model Code of Professional Responsibility, which was adopted in 1969 and subsequently approved by the vast majority of state and federal jurisdictions. Model Rules of Professional Conduct, at ix, (Am. Bar Ass'n 2012). The code acquired the force of law only when it was adopted in a jurisdiction by a state authority, typically the state’s supreme court. Charles W. Wolfram, Modern Legal Ethics, 56 (West 1986).

     The code had nine broad canons, including: A Lawyer Should Preserve the Confidences and Secrets of a Client (Canon 4); A Lawyer Should Exercise Independent Professional Judgment on Behalf of a Client (Canon 5); A Lawyer Should Represent a Client Competently (Canon 6); and A Lawyer Should Represent a Client Zealously within the Bounds of the Law (Canon 7). Following each canon were Ethical Considerations, which were aspirational, and Disciplinary Rules, which were binding. Model Code of Professional Responsibility (Am. Bar Ass'n 1986).

     In 1983, the ABA approved the Model Rules of Professional Conduct, which were adopted in Florida in 1986. These Florida Rules of Professional Conduct, which closely follow the model rules, consist of approximately 60 rules each followed by a comment section. Rules Regulating the Florida Bar, Chapter 4 (2013). Thus, it is the Florida Rules of Professional Conduct that now provide lawyers with the essential guidelines for ethical behavior in Florida. Just as importantly, it is from the example of more senior lawyers that today’s younger, less experienced lawyers can create an ethical foundation for a legal profession that promotes civility and honesty among its members, as well as a respect for the community at large.

Tuesday, October 13, 2015

Immigration & Nationality Law: Giving Your All

By Maria del Carmen Ramos

     When I was young, someone once asked me who my sports hero was. Without hesitation, I responded: Roberto Clemente. Considering the fact that no other Puerto Rican athlete had achieved the same level of admiration, respect, and love, the answer was easily accepted.

     Clemente, the youngest of seven siblings, grew up working in the same sugar fields as his father. At the time that he was drafted by the Pittsburgh Pirates, baseball was just breaking the color barrier, and Clemente spoke very little English. But none of that deterred Clemente. He went on to become the first Latin American/Caribbean player to win a World Series as a starter, receive a National League MVP Award, receive a World Series MVP Award, and be elected to the Hall of Fame. During his career, Clemente won 12 Gold Glove Awards, four National League batting titles, and two World Series Championships; was named to 12 All-Star Games; and reached the 3,000-hit milestone — something only 10 players in the history of the major leagues had ever done up to that point.

     But what might be surprising to some is that the reason I admire Clemente has nothing to do with his professional accolades. As revered as Clemente was for all his professional achievements, I admire him more for his actions off the field than on the field. Indeed, it was the countless tales of Clemente’s generosity that turned a simple man (by all accounts) into a legend of fierce ethnic pride for me.

     Clemente spent most of his time during the off-season doing charitable works by helping people (especially children) and giving of himself. The countless schools, hospitals, public buildings, monuments, and statues that bear his name are a testament to his philanthropy. But his generosity was never calculated to gain public or private recognition. As Clemente once said, “I want to be remembered as a baseball player who gave all he had to give.”

     And giving his all he did. In response to a massive earthquake in Managua, Nicaragua, Clemente set out to arrange for emergency relief flights carrying aid. But when he learned the aid had not reached the victims because the government of Nicaragua had diverted the first three flights, Clemente decided to accompany the fourth relief flight in the hopes that his presence would ensure that the aid reached the earthquake victims. But as fate would have it, Clemente’s plane crashed shortly after takeoff with no survivors.

     Clemente’s story is a reminder to me that as lawyers, much has been given to us, but much is also expected. It is impossible to ignore the different crises affecting us (most stemming simply from a lack of access to justice) and the need for legal professionals to lend a hand. In each story, there is an echo that reminds me that there must be more to our profession than simply billing hours or making money. This year, consider taking on a pro bono case. To paraphrase Clemente: We should strive to be lawyers who gave all we had to give.

Friday, October 9, 2015

Health Care Law: Lesson from Tuomey - Shoppers of Legal Opinions Beware

By Thomas (T.J.) Ferrante

     On July 2, the Fourth Circuit affirmed a $237,454,185 judgment against Tuomey Healthcare System, a small, nonprofit hospital in Sumter, S.C. United States ex rel. Drakeford v. Tuomey Healthcare Sys., Inc., 2015 WL4036166 (4th Cir. July 2, 2015), available at The Fourth Circuit’s opinion may be the final chapter in the decade-long legal drama that addresses a number of significant issues arising under the Physician Self-Referral Law (Stark law) and the False Claims Act (FCA).

     Beginning in 2000, a number of local physicians were increasingly performing outpatient surgeries at their offices or at competing ambulatory surgery centers (ASCs), rather than as outpatient hospital surgeries. As a result, Tuomey was losing revenue it would otherwise receive from the facility fees generated by outpatient hospital services. To stem the loss of this revenue, Tuomey entered into part-time employment agreements with the 19 physicians. 

     After one of the physicians, Dr. Michael Drakeford, expressed compliance concerns about the structure of the proposed arrangements, Tuomey sought legal advice on the contracts from several attorneys ― one of whom, Kevin McAnaney, indicated that the contracts raised “red flags” under the Stark law. Despite McAnaney’s concerns, Tuomey continued with the 19 part-time employment agreements, having obtained legal advice from other counsel and an FMV opinion from a consulting firm. Dr. Drakeford subsequently filed an action under the qui tam provisions of the FCA.

     Tuomey argued that it did not knowingly violate the FCA because it reasonably relied on the advice of legal counsel. The court rejected this assertion, finding the record to be “replete with evidence indicating that Tuomey shopped for legal opinions approving of the employment contracts, while ignoring negative assessments.” The court found it was reasonable for the jury to conclude that Tuomey did not rely on legal counsel’s advice in good faith because the hospital refused “to give full consideration to McAnaney’s negative assessment of the part-time employment contracts and terminated his representation.” With respect to the more favorable legal opinions obtained from other legal counsel, the court observed that they were issued without knowledge of the concerns raised by McAnaney.

     A key takeaway from this case is that obtaining a second legal opinion or valuation opinion must be done cautiously (if at all) because it might later be used as evidence of improper intent. For example, it would be prudent to consider sharing the first expert’s opinion with any second expert who is hired and then asking the second expert to explain the basis for reaching a different conclusion, e.g., changes in facts since the first expert’s review, information overlooked by the first expert, or other reasons the second opinion should be given greater weight.

     While it is interesting to note that the concurring opinion found the result in Tuomey “troubling,” writing that the Stark law has become a “booby trap” for health care providers, the high penalty imposed on the hospital in this case likely will encourage both whistleblowers and the government to scrutinize and challenge the nature of financial relationships with physicians.

Wednesday, October 7, 2015

Environmental & Land Use Law: Sharing Knowledge and Collaborative Networking

By Erin McCormick and Gordon J. Schiff

     We are excited to co-chair the Environmental & Land Use Section for a second year. Last year, the section undertook quarterly programs covering a wide range of topics relevant for attorneys, law students, and affiliate members with an interest in land use, environmental, state, and local government issues. We appreciated the positive response, enthusiasm, and interest members of our section showed for these programs. We also welcomed participation from members of some of the other sections, as well as law students and affiliate members in environmental/land use-related professions who joined us for these events. Building upon last year’s events, we are looking forward to a new year of educational programs and luncheons, including providing CLE credits. We strive to make our section’s activities and events both fun and educational. We also intend to increase participation of our members in giving back to the community.

     To recap last year’s programs, the section started the year with a CLE luncheon focusing on Port Tampa Bay (formerly known as the Tampa Port Authority). Charles Klug, chief legal officer for Port Tampa Bay, Florida’s largest and most cargo-diverse seaport, gave a fascinating presentation about the history of the port, its environmental permitting jurisdiction and structure, and the past, present, and future land uses and activities at Port Tampa Bay.

     The next program featured Jim Shimberg, vice president and general counsel for the Tampa Bay Lightning. Shimberg is also the chief operating officer of Jeffrey Vinik’s real estate company, which is developing 25 acres of land in downtown Tampa, surrounding Amalie Arena. Shimberg shared the vision and tremendous progress that is occurring for this exciting project, which will transform and propel Tampa’s downtown and our community into the future.

     In February, the section hosted a presentation and social at one of Tampa’s newest and most exciting projects, the Ulele Restaurant. The program focused on the Ulele Springs restoration, the development of Water Works Park, and the next anticipated development for this area, known as Tampa Heights. The program presenters included Catherine Coyle, planning and urban design manager for the City of Tampa; Karla Price, project manager and landscape architect for the city, who oversaw the Water Works Park remediation and development; and Thomas Ries, biologist and president of Ecosphere Restoration Institute, Inc., which undertook the restoration of Ulele Springs. In addition to this tremendous program, members learned about how a vision of one of our city’s greatest leaders, Richard Gonzmart, came to fruition as the Ulele Restaurant. Our members enjoyed a unique, fun, and educational evening, including networking and socializing, within the beautiful beer garden and brewery at the restaurant.

     The finale for last year was a timely legislative update recapping the Florida Legislature’s activities regarding environmental and growth management matters, as well as other legislative developments of interest to the section. This update was provided by Linda Loomis Shelley, an esteemed Tallahassee land-use attorney with Buchanan Ingersoll & Rooney, who has served in numerous top Florida government positions, including secretary of the former Florida Department of Community Affairs and general counsel to Governor Bob Graham. Shelley gave an overview of key legislation that passed and failed, and she discussed the 2015 special session.

     While we are very appreciative of the enthusiasm and growing support for these programs, our goal for the upcoming year is to build on last year’s events and activities and to continue to provide programs featuring interesting speakers and educational and timely topics. We thank our existing members (we couldn’t do this without you!) and look forward to new members joining our section. Finally, we will continue to promote pro bono work by our section members and encourage our members to give back to our community.

     If you are interested in environmental and land-use issues or know someone who may want to join our section, we encourage you to get involved. Thank you for this honor of chairing the HCBA’s Environmental & Land Use Section, and we look forward to seeing you.

Monday, October 5, 2015

Elder Law: No Probate for VA Fiduciary Accounts

By Jack M. Rosenkranz

A VA fiduciary account avoids probate despite standard thinking that the account requires probate since no beneficiary was named.

When a beneficiary is unable to manage his or her affairs due to injury, illness, or infirmities of age, the Veterans Administration will appoint a fiduciary. The fiduciary is bonded and reports to the VA how the funds are used. This appointment will occur despite existing powers of attorney or a guardianship order. The fiduciary role is to protect these funds on behalf the beneficiary. Federal law makes this clear. For instance, federal law prohibits a fiduciary from assigning benefits to a third party, and those benefits cannot be seized by creditors.
Nonassignability and exempt status of benefits 
(a)(1) Payments of benefits due … under any law administered by the Secretary shall not be assignable except to the extent specifically authorized by law, and such payments made to, or on account of, a beneficiary … shall be exempt from the claim of creditors, and shall not be liable to attachment, levy, or seizure by or under any legal or equitable process whatever, either before or after receipt by the beneficiary.

38 U.S.C. § 5301

When a VA beneficiary dies, it is general practice to probate the VA fiduciary accounts to transfer significant dollars according to the testamentary intent stated in the will or by intestacy. By using the probate process to transfer the funds, however, the funds are subject to claims of creditors. Many estates are at risk for liens for the cost of their care. But, much like the intestacy statute, the VA fiduciary is mandated to distribute remaining unused funds to the family of the veteran.      

Often, elder law attorneys will help a client avoid probate by naming a beneficiary on the depository agreement of the financial institution account. Due to the representative payee nature of the VA fiduciary account, however, the fiduciary is not permitted to name a beneficiary. Fortunately, federal law specifies a distribution outside of probate. 

When a beneficiary dies, the fiduciary shall distribute to the spouse and, if the spouse is not living, then to the children.
In the event of the death of a mentally incompetent or insane veteran, all gratuitous benefits under laws administered by the Secretary deposited before or after August 7, 1959, in the personal funds of patients trust fund on account of such veteran shall not be paid to the personal representative of such veteran, but shall be paid to the following persons living at the time of settlement, and in the order named: The surviving spouse, the children (without regard to age or marital status) in equal parts, and the dependent parents of such veteran, in equal parts.

38 U.S.C. § 5502 (d)

Financial institutions have expressed a lack of awareness of the law in this area. When brought to the attention of legal counsel, financial institutions to date have honored federal law and made distributions outside of probate, avoiding estate claims. Providing an affidavit of heirs is the proper tool to use when requesting the distribution of unused funds. Be aware, the VA is increasing oversight of the actions of a veteran’s fiduciary, and lawyers giving advice in the area are at risk for malpractice claims.

Saturday, October 3, 2015

Real Property, Probate & Trust Law: Two Federal Courts Rule on Statute of Limitations While Bartram Awaits Decision

By Jennifer Lima-Smith

The Florida Supreme Court recently granted certiorari in Bartram v. U.S. Bank, N.A., 140 So. 3d 1007 (Fla. 5th DCA 2014), cert. granted, to consider whether a mortgage foreclosure action was time-barred where it was brought more than five years after an earlier foreclosure action, which sought to accelerate a note, was dismissed without prejudice. In the meantime, two federal district courts have ruled on that very issue: the Southern District of Florida in Summerlin Asset Management V Trust v. Jackson, 2015 WL 4065372 (S.D. Fla. Jul. 2, 2015); and the Middle District of Florida in Stern v. Bank of America Corp., 2015 WL 3991058 (M.D. Fla. Jun. 30, 2015). The decisions in Summerlin and Stern may provide some guidance for courts until the Florida Supreme Court’s decision in Bartram, which is set for oral argument in November.

In Bartram, U.S. Bank sued to foreclose its mortgage because Bartram defaulted on his loan obligations to the bank. According to the court, the bank had satisfied all conditions to accelerate the loan. But that foreclosure action was ultimately dismissed because the bank failed to appear at a pre-trial conference. Bartram later filed a declaratory judgment action seeking a declaration that any claim under the mortgage was time-barred since more than five years had passed since the bank accelerated the loan. Bartram essentially took the position that statute of limitations begins to run from the date of acceleration and expires five years from that date unless the mortgagee takes some act to decelerate the loan. And the mere voluntary dismissal of a foreclosure action does not, by itself, decelerate the loan. The Fifth DCA, relying heavily on the Florida Supreme Court’s decision in Singleton v. Greymar Associates, 882 So. 2d 1004 (Fla. 2004), held that the bank’s prior acceleration of the loan did not trigger the statute of limitations with respect to the accelerated payments. 140 So. 3d at 1010-11.

Florida’s appellate districts are currently split on this issue. The Fourth DCA takes the same view as Bartram. See Evergrene Partners, Inc. v. Citibank, N.A., 143 So. 3d 954 (Fla. 4th DCA 2014). The Third DCA, however, takes the opposite view. In Deutsche Bank Trust Co. Americas v. Beauvais, the Third DCA held that dismissal without prejudice of a foreclosure action in which a mortgagee sought to accelerate a loan does not function to decelerate the loan. That holding is significant because the statute of limitations continues to run on all payments accelerated (i.e., the entire loan amount), and the failure to bring suit within five years of acceleration will bar any subsequent suit unless the mortgagee has affirmatively decelerated the note. This conflict is concerning.

Recently, two federal courts have provided some insight into how the Florida Supreme Court may resolve the split among the districts. In Summerlin, the Southern District of Florida, acknowledging the split among the Florida appellate districts, observed, after a careful review of the case law, that the “vast majority of state and federal courts in Florida have found” that a “mortgagee’s prior exercise of its right to accelerate all payments and bring a foreclosure action will not begin the limitations period as to the entire mortgage.” 2015 WL 4065372, at *5. In fact, the Summerlin court noted that Beauvais is essentially the lone exception to that rule. Stern likewise concluded that Beauvais is “contrary to the overwhelming weight of authority.” 2015 WL 4065372, at *3. And Stern, like Summerlin, relied on the Fourth DCA’s decision in Evergrene Partners for the proposition that where a prior foreclosure action was dismissed without prejudice, “any acts of default still within the statute of limitations may be raised in a subsequent suit.” Id. (quoting Evergrene Partners, 143 So. 3d at 965). Of course, the decisions in Summerlin and Stern are not binding, but they are enlightening and do provide some guidance until the Florida Supreme Court decides Bartram sometime after oral argument in November.

Thursday, October 1, 2015

Diversity Committee: I Hope You Dance…

By Victoria Cruz-Garcia 

     Someone once told me that diversity is being invited to the party and inclusion is being asked to dance. The members of the Hillsborough County Bar Association proudly dance together and quite often. We are proud to have a great many voluntary bar associations that represent the great diversity of our profession and community.

     Our voluntary bar associations have often worked together for the greater good. Not too long ago, the HCBA, the Tampa Hispanic Bar Association (THBA), the Hillsborough Association for Women Lawyers (HAWL), and the George Edgecomb Bar Association (GEBA) came together to present a program titled “A Lesson on Modern Day Slavery.” This program focused on educating our members, attorneys, and the community at large about the devastating effects of human trafficking in our community. In June, we joined forces again to honor Latino and African-American veterans who fought during the World War II-Korean War-Vietnam War eras, when their service was undermined by societal prejudices and biases. And just recently, at the annual Salsa, Soul & Sass event, the THBA, GEBA, and HAWL came together to not only have a good time and for fellowship but to also raise funds for Emanuel A.M.E Church in Charleston, S.C.

     The number of voluntary bar associations continues to grow. For example, just recently, local attorneys came together to found the Hillsborough County Lesbian Gay Bisexual and Transgender (LGBT) Bar Association.

     Recent events have proven our country to be the embodiment of the "quilt" ideal. A combination of traditions that come together like patchwork to rally behind a core set of values. Our diverse bar associations work toward this goal at a local level. At our best, we believe that our mission is in fact uniquely American. We have different skin colors. We have different ideas about religious faith. We look different, but at our core, we are all American.

     Locally, our passion is for the law and our community. Certainly the tragic events that transpired in Charleston have reflected the worst and best of our humanity, but most importantly they have shown that there is hope as we move forward. Hope is shown through our lawyers and professionals who embrace diversity and who continue to fight, both in their individual and professional lives, for equality for all. We know that by supporting one another as voluntary bar associations, we learn from one another.

     At the heart of bringing together these bar associations, values, and ideas is the HCBA Diversity Committee. This special committee works to improve and promote diversity in the legal profession. The committee focuses its work on retaining lawyers with diverse backgrounds and informing the broader legal community about issues surrounding diversity and inclusion.

     So we invite you to join the HCBA Diversity Committee. We meet every month and collaborate together for unity and equality.